Reference

"Law is a term which does not have a universally accepted definition, but one definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. Laws can be made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedents (normally in common law jurisdictions). Private individuals can create legally binding contracts, including (in some jurisdictions) arbitration agreements that exclude the normal court process. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics, and society in various ways and serves as a social mediator of relations between people. ..."

Articles

"Coke had a gift for expressing common law principles in unforgettable ways. 'The common law,' he wrote, 'is the best and most common birth-right that the subject hath for the safeguard and defense, not merely of his goods, lands and revenues, but of his wife and children, his body, fame and life...No man ecclesiastical or temporal shall be examined upon secret thoughts of his heart...the house of an Englishman is to him as his castle.' ... Common law was the law which applied to everyone. It included Saxon legal customs, standard commercial practices for resolving disputes, Parliamentary statutes, judicial decisions and some royal decrees."

Barristers and Barriers: Sir Edward Coke and the Regulation of Trade [PDF], by Gary M. Anderson, Robert D. Tollison, Cato Journal, 1993
Examines Coke's impact on the regulation of the legal profession and argues that while he opposed royal grants of monopoly privileges, his efforts tended to enhance monopoly advantages of common law barristers

"In early modern England, judicial services were provided in a competitive market, in which a variety of different courts and court systems, operating according to different sets of legal principles and precedents, adjudicated disputes. ... Beginning in the late 16th century, the court system based on the English common law had begun to achieve clear dominance in the market for judicial services by erecting various legal entry barriers which hampered the ability of other court systems to successfully compete. The three common law courts ... colluded together, and generated substantial rents for the privileged barristers."

"... Bentham ... aimed to occupy the same role with respect to society and law that Newton had to physics, by reducing the multiplicity of phenomena to unity through the discovery of a single basic principle: the principle of utility. The fundamental concepts of the law, he maintained, must be concrete and observable by the senses, not abstract, and they are two: pleasure and pain. The ground of the law is physical sensibility; everything men do is motivated by the desire to avoid pain or obtain pleasure, which are just two sides of the same coin. ... An action or policy is rational to the extent that it possesses utility, that is, contributes to human happiness."

"No one single conception of law is articulated in Coke's books, speeches, and writings. Yet his ideas about the law are consistent over his long career, and they may be summarized as taking the form of four principles: as a measure of human conduct applied by professionals, as a set of rules common to all, as a limitation on officials, and as a source of rights. ... Coke described the law as 'artificial reason' arising from the study and practice of the law's precedents and customs. He saw this study as taking 'new corn from old fields,' relying on long-established principles of reason and right to govern new forms of conduct."

"We have 160,000 pages of rules from the feds alone. States and localities have probably doubled that. We have so many rules that legal specialists can't keep up. Criminal lawyers call the rules 'incomprehensible.' They are. They are also 'uncountable.' Congress has created so many criminal offenses that the American Bar Association says it would be futile to even attempt to estimate the total. So what do the politicians and bureaucrats of the permanent government do? They pass more rules."

Crime and Punishment in a Free Society, by Sheldon Richman, 6 Dec 2013
Describes how customary law and the principle of restitution were corrupted by English kings into a system of government laws and punishment of crimes (originally, violations of the "king's peace")

"At one time, an 'offense' that was not an act of force against an individual was not an offense at all. ... before the royal preemption, customary law prevailed in England. ... In such a system of law, one was not likely to see 'offenses' without true victims. ... This arrangement worked out fairly well — until would-be rulers, who needed money to finance wars of conquest and buy loyalty by dispensing tax-funded jobs, discovered that there was gold to be had in the administration of justice."

Crime and Punishment in a Free Society, by Sheldon Richman, Future of Freedom, Apr 2014
Expanded version of the TGIF article of 6 Dec 2013: describes how customary law and the principle of restitution were corrupted by English kings into a system of government laws and punishment of crimes

"... I want to draw attention to the distinction between crime and tort — between offenses against the state (or 'society') and offenses against individual persons or their justly held property. We're so used to this distinction, and the priority of the criminal law over tort law, that most of us don't realize that things used to be different. ... In a free society the category torts would fully replace the category crimes, and restitution would fully replace retribution."

Emergencies: The Breeding Ground of Tyranny, by William L. Anderson, Future of Freedom, Nov 2006
Examines the long history of "emergency powers" claimed by U.S. Presidents, including recent examples such as sanctions stemming from the International Economic Powers Act and the so-called War on Terror

"Indeed, as federal and state laws become more expansive and historical liberties are routinely crushed, perhaps it is time to look at the laws themselves, as opposed to seeing only whether President Bush’s actions are legal. Even if one is keeping to the letter (and even the spirit) of a law that violates individual rights, the larger and more pertinent question is not 'Is it legal?' but rather 'Why does this law exist anyway?'"

E.R.A.: A Red Herring at Best, by Charles Curley, 1981
A rebuttal to an Association of Libertarian Feminists discussion paper in favor of the Equal Rights Amendment

"Time and time again the history of man shows us that you cannot legislate what people think or how they think. Sexism can be ended. It will not be ended by passing another law, but by teaching, by example, by one-to-one discussion, argument and conversion. ... Working to pass a law does nothing to further the goal of changing people's attitudes."

Frederic Bastiat, Ingenious Champion for Liberty and Peace, by Jim Powell, The Freeman, Jun 1997
Lengthy biographical essay, covering those who influenced Bastiat as well as those influenced by him, his writings (including correspondence with his friend Félix Coudroy), his roles in the French Constituent and Legistative Assemblies and his legacy

"Bastiat went on to attack what he called 'legal plunder'—laws which exploit some people to benefit politically connected interests. He described how such laws tend to politicize private life: 'It is in the nature of men to react against the inequity of which they are the victims. When, therefore, plunder is organized by the law for the profit of the classes who make it, all the plundered classes seek, by peaceful or revolutionary means, to enter into the making of the laws.'"

"Thoreau dissects the notion that 'the law is the law and should be respected.' For one thing, not all laws are equal. Some laws exist for no other reason than to protect the government — for example, laws against tax evasion or contempt of court. Such laws often have more severe penalties than those that protect individuals against violence."

"... the obligations of natural law — essentially not to trespass on the person and property of others — preexist and are not the result of anything that legislators say. ... Statutes forbidding murder, rape, torture, and theft, then, are redundant, adding nothing to our natural obligations as human beings. But legislation consistent with justice is the exception, not the rule."

"There have been times in which 'law' was, indeed, a means for peacefully resolving disputes. The ancient system known as the 'law merchant,' for example, developed among men of commerce as a way of settling quarrels in the marketplace. ... Over time, the political system took over the roles of these merchant judges, and 'law' became more completely politicized."

"... the principles of tort or criminal law ... are negative commands or prohibitions, on the order of 'thou shalt not' do actions X, Y, or Z. ... certain actions are considered wrong to such a degree that it is considered appropriate to use the sanctions of violence (since law is the social embodiment of violence) to combat, defend against, and punish the transgressors."

Liberalism, by Friedrich Hayek, New Studies in Philosophy, Politics, Economics and the History of Ideas, 1978
Chapter 9; originally written in 1973 for the Enciclopedia del Novicento; covers both the history of both strands of liberalism as well as a systematic description of the "classical" or "evolutionary" type

"Rome, in addition, gave at least. to the European continent a highly individualist private law, centring on a very strict conception of private property, a law, moreover, with which, until the codification under Justinian, legislation had very little interfered and which was in consequence regarded more as a restriction on, rather than as an exercise of, the powers of government."

"Grotius championed a natural law philosophy which derived from the 'higher law' doctrine of Marcus Tullius Cicero and other ancient Roman and Greek philosophers. They believed the legitimacy of government laws must be judged by standards of justice – natural law. Grotius defended natural law without appealing to the Bible or organized religion. He insisted it followed from the nature of things, and it was discovered by human reason. He wrote, 'Now the Law of Nature is so unalterable, that it cannot be changed even by God himself. For although the power of God is infinite, yet there are some things, to which it does not extend.'"

"Sidney (Euonomius) affirmed the doctrine of a 'higher law' which had been championed by Cicero, ... He continued, 'The essence of the law consists solely in the justice of it: if it be not just, it is no law... The law that should be for our defense is a snare...what law soever is made prejudicial to those of that society, perverting justice, destroys the end for which it ought to be established, is therefore in the highest degree unjust and utterly invalid ...The most important temporal interests of all honest men are: to preserve life, liberty, and estate.'"

"The basic point, however, is that the state is not needed to arrive at legal principles or their elaboration: indeed, much of the common law, the law merchant, admiralty law, and private law in general, grew up apart from the state, by judges not making the law but finding it on the basis of agreed-upon principles derived either from custom or reason. The idea that the state is needed to make law is as much a myth as that the state is needed to supply postal or police services."

"Once you leave the ken of common law, the only distinction between the 'laws' of governments and the ad hoc proceedings of an informal assemblage such as a mob, or of a more formal group like the KKK, boils down to the force the group can muster to impose its will on others. The laws of Nazi Germany and the USSR are now widely recognized as criminal fantasies that gained reality on a grand scale. But at the time those regimes had power, they were treated with the respect granted to any legal system."

The Idea of a Private Law Society, by Hans-Hermann Hoppe, Mises Daily, 28 Jul 2006
Discusses the problem of social order, i.e., rules to regulate the use of "everything scarce so that all possible conflicts can be ruled out"

"The idea of eternal and immutable law that must be discovered will disappear and be replaced by the idea of law as legislation — as flexible state-made law. ... However, this democratic equality before the law is something entirely different from and incompatible with the idea of one universal law, equally applicable to everyone, everywhere, and at all times."

"In Christendom — now derisively called the Middle Ages — it was believed that everything had its natural limits, including law. A human or 'positive' law could not be the mere whim or will of the ruler; it was expected to conform to natural law. Not that this principle was always honored, far from it; but it was acknowledged. ... Today, as C.S. Lewis observed, law has become the unbounded will of the State, which is 'incessantly engaged in legislation.'"

Law's Order: What Economics Has to Do with Law and Why It Matters
by David D. Friedman, 2000
Partial contents: What Does Economics Have to Do with Law? - Efficiency and All That - What's Wrong with the World - Defining and Enforcing Rights - Of Burning Houses and Exploding Coke Bottles - The Economics of Contract - Marriage, Sex, and Babies